Howe v. Seven Forty Two Co., Inc.

• Decision Date: 19 January 2011
• Docket Number: No. B218939.,B218939.
• Citation: 189 Cal.App.4th 1155,117 Cal.Rptr.3d 126,10 Cal. Daily Op. Serv. 14, 103
• Parties: Michael HOWE, Plaintiff and Appellant, v. SEVEN FORTY TWO COMPANY, INC., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

189 Cal.App.4th 1155

117 Cal.Rptr.3d 126

10 Cal. Daily Op. Serv. 14,103

2010 Daily Journal D.A.R. 16,961

Michael HOWE, Plaintiff and Appellant,

v.SEVEN FORTY TWO COMPANY, INC., Defendant and Respondent.

No. B218939.

Court of Appeal, Second District, Division 4, California.

Nov. 5, 2010.

Review Denied Jan. 19, 2011.

**127 Law Offices of George T. Kelly and George T. Kelly, Seal Beach, for Plaintiff and Appellant.

Joseph L. Stark & Associates and Joseph L. Stark, Valencia, for Defendant and Respondent.

EPSTEIN, P.J.

*1159 In this case we hold that although the presumption of negligence established by Evidence Code section 646 (res ipsa loquitur) disappears upon the introduction of evidence tending to rebut the presumed fact, the plaintiff is still entitled to rely on the logic of the underlying common law **128 inference of negligence if the evidence supports it, as it does in this case.

This negligence lawsuit arose from injuries suffered by appellant Michael Howe when he fell off of a counter stool at a restaurant operated by respondent IHOP.¹ The trial court found no evidence that respondent had actual or constructive notice of a defect in the stool, and granted respondent's motion for summary judgment. Appellant argues the trial court erred in failing to consider the res ipsa loquitur doctrine as a separate basis for respondent's liability. We reverse the judgment.

FACTUAL AND PROCEDURAL SUMMARY

On June 26, 2008, appellant Michael Howe visited respondent's IHOP restaurant in Alhambra. When he sat down on a counter stool and leaned against the back, the chair fell off the base, causing him to fall to the ground. No other physical condition of the premises contributed to the fall.

There were seven counter stools at the restaurant, each attached to a metal base which fitted into a riser bolted to the floor. Each metal base was attached to the wood seat by three wood screws. Of the three screws attached to the seat, the subject of this complaint, two broke approximately one-half inch from the head, and one broke about one-fourth inch below the head. Appellant had no knowledge or information as to what caused the screws to break. When appellant turned the stool in order to sit down, he did not notice anything wrong with the stool and felt no looseness. Appellant did not know whether the screws failed before he placed his body on the seat, and he observed nothing about the screws which indicated long-term failure.

According to its managers, respondent conducted regular inspections of the restaurant which included looking at the bottom of the stools. Only the heads *1160 of the screws were visible from the bottom of the stools. No evidence was submitted that the inspection involved more than a visual look at the bottom of the stools. Prior to the accident, there had been no previous reported incident of a counter stool seat separating from the metal base. Appellant had visited the restaurant the week before the incident. He did not observe any problems with the seat while other patrons used it.

Appellant's complaint included causes of action for premises liability and general negligence. Respondent moved for summary judgment, presenting undisputed evidence that it had conducted regular inspections and that the stools had been used on a regular basis without any previous reported instance of a stool base breaking off and falling to the ground. At the hearing on the summary judgment motion, appellant claimed that respondent's "inspection program is unreasonable," arguing that the facts supported an inference of negligence under the doctrine of res ipsa loquitur. This, in turn, raised a triable issue of fact sufficient to defeat a motion for summary judgment.

The trial court granted the summary judgment motion, finding no triable issue of material fact as to respondent's negligence.**129 Judgment was entered and appellant filed this timely appeal.

DISCUSSION

"[A] motion for summary judgment may only be granted when, considering all of the evidence set forth in the papers and all inferences reasonably deducible therefrom, it has been demonstrated that there is no triable issue as to any material fact and the cause of action has no merit." ( Habitat Trust for Wildlife, Inc. v. City of Rancho Cucamonga (2009) 175 Cal.App.4th 1306, 1331, 96 Cal.Rptr.3d 813; Code Civ. Proc., § 437c, subd. (c).) A defendant moving for summary judgment must demonstrate that there is no triable issue of fact, either by showing that the cause of action has no merit or that one or more elements of the cause of action cannot be established. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Once the defendant makes this showing, the burden shifts to the plaintiff to show that there are issues of triable fact. To do that, the plaintiff must "set forth the specific facts showing that a triable issue of material fact exists" and "may not rely upon the mere allegations or denials" of its pleadings. ( Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th at p. 849, 107 Cal.Rptr.2d 841, 24 P.3d 493.) Our review of the trial court's ruling granting summary judgment is de novo. ( Id. at p. 860, 107 Cal.Rptr.2d 841, 24 P.3d 493.)

*1161 In his complaint, appellant alleges that respondent was negligent and therefore is liable for injuries suffered when he fell off the counter stool on respondent's premises. To establish liability on a negligence theory appellant must prove duty, breach, causation and damages. (Rest.3d Torts, § 6; Nola M. v. University of Southern California (1993) 16 Cal.App.4th 421, 426, 20 Cal.Rptr.2d 97.) While an owner is not an insurer of safety to those on its premises, an owner owes them "a duty to exercise reasonable care in keeping the premises reasonably safe." ( Ortega v. Kmart Corp. (2001) 26 Cal.4th 1200, 1205, 114 Cal.Rptr.2d 470, 36 P.3d 11.) A store owner exercises reasonable care when it regularly inspects the premises and the required level of care corresponds to the risks involved. ( Ibid.) In its motion for summary judgment respondent presented evidence that it conducted regular inspections of the stools and had no indication of problems with the seat of the stool separating from its base.

In opposition, appellant contended that the doctrine of res ipsa loquitur applied to demonstrate the presence of negligence and raised a triable issue of fact. "The doctrine of res ipsa loquitur is applicable where the accident is of such a nature that it can be said, in the light of past experience, that it probably was the result of negligence by someone and that the defendant is probably the one responsible." ( DiMare v. Cresci (1962) 58 Cal.2d 292, 298-299, 23 Cal.Rptr. 772, 373 P.2d 860; see also Brown v. Poway Unified School Dist. (1993) 4 Cal.4th 820, 838-839, 15 Cal.Rptr.2d 679, 843 P.2d 624.)

Res ipsa loquitur is an evidentiary rule for "determining whether circumstantial evidence of negligence is sufficient." ( Brown v. Poway Unified School Dist., supra, 4 Cal.4th at p. 825, 15 Cal.Rptr.2d 679, 843 P.2d 624.) In California, it is "a presumption affecting the burden of producing evidence." (Evid.Code, § 646,² subd. (b); see also Assem. Com. on Judiciary, com. on Assem. Bill No. 333 (1965 Reg. Sess.) reprinted at 29B pt. 2 West's Ann. Evid.Code (1995 ed.) foll. § 604, p. **130 59, which states that "[s]uch a presumption is merely a preliminary assumption in the absence of contrary evidence, i.e., evidence sufficient to sustain a finding of the nonexistence of the presumed fact.")

In order to invoke res ipsa loquitur, the plaintiff has the burden to establish three conditions: "(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff." (Prosser, Torts (4th ed. 1971) § 39, p. 214; see also Ybarra v. Spangard (1944) 25 Cal.2d 486, 489, 154 P.2d 687.) If the plaintiff *1162 establishes these conditions, the doctrine applies and the defendant is presumptively negligent. (§ 604; see also § 646, subd. (c).)

We are satisfied that appellant presented sufficient evidence to invoke the res ipsa loquitur doctrine. First, it is safe to say that in light of common experience, a counter stool does not ordinarily fall off its base when used normally unless someone is negligent. Second, the counter stool in this case was in respondent's exclusive control. According to the declarations of Jose Delgado, the manager of respondent's restaurant for 14 years preceding the current manager, and Tomas Ruiz, who has been the manager of respondent's restaurant since November 2007, no changes or modifications were made in the method by which the stool was attached to its metal base. Finally, appellant sat upon the stool in an ordinary manner, tilting it about an inch to facilitate his doing so. There was sufficient evidence to establish that the doctrine of res ipsa loquitur applied.

The res ipsa loquitur doctrine was recognized in California and other jurisdictions for decades before its codification into section 646. But it was problematic with respect to just what kind of inference or presumption of negligence it presented, and whether it persisted in the face of evidence to rebut the presumed fact. (See Comment, Evidence: Burden of Proof: Res Ipsa Loquitur (1924) 12 Cal. L.Rev. 138, 139 ["great amount of confusion [exists] as to the effect of the rule res ipsa loquitur" and where it applies, particularly with respect to its effect on burden of proof]; Louisell & Williams, Res Ipsa Loquitur (1960) 48 Cal. L.Rev. 252, 256 [there was "most grievous confusion" among the cases about relation of the doctrine to inference, presumption, burden of going forward with the evidence, and burden of proof; authors suggest rule shifting burden of proof as solution].)

The confusion was...